McCan v. Electronic Arts-Tiburon

Filing 24

REPORT AND RECOMMENDATION that 21 Joint MOTION to Approve Settlement be granted. Signed by Magistrate Judge David A. Baker on 9/23/2011. COPIES SENT.(LAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERLE MCCAN,
Plaintiff,
-vs-

Case No. 6:11-cv-709-Orl-31DAB

ELECTRONIC ARTS-TIBURON,
Defendant.
______________________________________

REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT

This cause came on for consideration without oral argument on the following motion filed
herein:
MOTION:

JOINT MOTION TO APPROVE SETTLEMENT (Doc. No.
21)

FILED:
August 29, 2011
_____________________________________________________________
THEREON it is RECOMMENDED that the motion be GRANTED.
The matter has been referred by the District Judge to determine whether the settlement is a
“fair and reasonable resolution of a bona fide dispute” over FLSA issues. See Lynn’s Food Stores,
Inc. v. United States, 679 F.2d 1350, 1354-55 (11th Cir. 1982). If a settlement is not one supervised
by the Department of Labor, the only other route for compromise of FLSA claims is provided in the
context of suits brought directly by employees against their employer under section 216(b) to recover
back wages for FLSA violations. “When employees bring a private action for back wages under the

FLSA, and present to the district court a proposed settlement, the district court may enter a stipulated
judgment after scrutinizing the settlement for fairness.” Id. at 1353 (citing Schulte, Inc. v. Gangi, 328
U.S. 108, 66 S.Ct. 925, 928 n.8, 90 L.Ed. 1114).
The Eleventh Circuit has held that “[s]ettlements may be permissible in the context of a suit
brought by employees under the FLSA for back wages because initiation of the action by the
employees provides some assurance of an adversarial context.” Id. at 1354. In adversarial cases:
The employees are likely to be represented by an attorney who can protect their rights
under the statute. Thus, when the parties submit a settlement to the court for approval,
the settlement is more likely to reflect a reasonable compromise of disputed issues
than a mere waiver of statutory rights brought about by an employer’s overreaching.
If a settlement in an employee FLSA suit does reflect a reasonable compromise over
issues, such as FLSA coverage or computation of back wages, that are actually in
dispute; we allow the district court to approve the settlement in order to promote the
policy of encouraging settlement of litigation.
Id.
Based on the Plaintiff’s responses to the Court’s Interrogatories (Doc. No. 14), Plaintiff was
employed by Defendant as an audio artist performing engineering tasks from December 2006 to May
2010. Plaintiff claimed entitlement to between $28,883.90 and $35,399.26 based on Plaintiff’s
estimates of hours worked Doc. No. 14. The settlement to Plaintiff of $27,750 in unpaid wages, with
no recovery for liquidated damages is slightly below the range for unpaid damages sought by Plaintiff.
Defendant’s Answer and Affirmative Defenses asserted that Plaintiff was an employee exempt
from overtime under the creative professional exemption, in that Plaintiff was regularly engaged in
creative work mastering sounds, recording and editing audio, casting and interviewing voice talent
and post video editing. Doc. 5. The parties mediated the case on August 19, 2011, and were able to
reach a settlement. Doc. 23.

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The parties have agreed that Defendant will pay Plaintiff’s attorneys $9,750, $7,560 for fees
and $2,190 for costs including mediation, filing fees, summons, and service of process fees.
Plaintiff’s counsel litigated the case on behalf of Plaintiff incurring 46.9 hours; total fees of
$7,560 equate to $161.19 per hour for an hourly rate, well below the average rate awarded in other
FLSA cases and below the hourly rate Plaintiff’s counsel generally charge of $225 to $275. The
amount of time devoted and the hourly rates are not unreasonable under the circumstances of this
case.
Settlement in the amount of $27,750 to Plaintiff for unpaid wages and liquidated damages, and
$9,750 for attorney’s fees and costs is a fair and reasonable settlement. It is RECOMMENDED that
the settlement be accepted by the District Court as a “fair and reasonable resolution of a bona fide
dispute” over FLSA issues.
Failure to file written objections to the proposed findings and recommendations contained in
this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from
attacking the factual findings on appeal.
Recommended in Orlando, Florida on September 23, 2011.

David A. Baker
DAVID A. BAKER
UNITED STATES MAGISTRATE JUDGE

Copies furnished to:
Presiding District Judge
Counsel of Record
Courtroom Deputy

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